The first in a series on child custody and visitation.
Custody can come up as a contested issue in a divorce between married parents, or it can be a standalone case in the instance of unmarried parents. It can also be addressed in a paternity case or implemented as an addition to a child support case.
However custody comes up, it always comes with its own language. In order to “speak custody,” you need to know a few definitions.
What does “custody” mean? It all depends on the context.
You may hear someone say they have custody of a child, meaning that at that particular moment, the child is physically with them. This use of the word is correct in common parlance, but is not specific enough in legal settings.
Following are a few key terms in the language of child custody:
Physical Custody. In the context of a legal proceeding involving custody issues, physical custody relates to a parent’s legal rights regarding the physical presence of the child. In other words, physical custody means which parent(s) a child lives with.
Sole (or Primary) Physical Custody refers to a situation in which one parent (the “custodial parent”) is granted physical custody significantly more often than the other parent (the “non-custodial parent”). Sole Physical Custody by one parent generally means the other parent has the child only according to a limited schedule, called a visitation schedule.
Visitation for a non-custodial parent is spelled out in a schedule approved by the chancery court judge. The “default” visitation schedule in many Mississippi courts is called a Farese visitation schedule, and is usually comprised of visitation every other weekend for about 48 hours, alternating or splitting holiday time, and 2-4 weeks in the summer.
Visitation can be supervised or unsupervised. Most visitation is unsupervised, meaning the child and the non-custodial parent are not under any requirement to be monitored by a third-party. Supervised visitation requires third-party monitoring (often by a relative), and is generally reserved for instances where there is a concern for the child’s well-being while with the non-custodial parent.
Joint Physical Custody means that both parents share approximately equal time with the child. An example of joint physical custody is one parent having the child four days a week and the other parent having the child three days a week. Another example is one parent having the child for a week followed by the other parent having the child for a week.
Legal Custody. In the context of a legal proceeding involving custody issues, legal custody relates to a parent’s legal rights regarding the sharing of information about the child and decision-making related to the child.
Sole Legal Custody occurs when a court places the decision-making rights of a child solely in the hands of one parent.
Joint Legal Custody means that both parents are entitled to the child’s medical and educational information (such as doctor’s records or report cards), and that the parties are required to communicate with one another about major decisions in a child’s life concerning medical, educational, or community topics (such as where to attend school or what medical treatments to undertake). In the event of a disagreement over such decisions, the custodial parent’s choice generally trumps the non-custodial parent’s choice.
Anecdotally, the most common result of a custody dispute is for one parent to have sole physical custody while the other has visitation, with both parents sharing joint legal custody.
Custody also comes in other forms, such as temporary custody and emergency custody, which I will discuss in a later post.
Knowing the language of custody can help you understand and identify what you want from your custody situation. Because custody cases vary so significantly, it is very important to contact a qualified family law attorney about your case as early in the process as possible.